Does the Supreme Court of Canada’s decision in Hryniak apply to litigants with “deep pockets”?
Should defendants with insurance be allowed to bring summary judgment motions?
Is summary judgment available to plaintiffs who have contingency fee arrangements with their lawyers and legal cost protection?
These are some of the issues that were addressed in a recent decision of the Ontario Superior Court of Justice.
Hryniak v. Mauldin
In Hryniak v. Mauldin,  1 SCR 87, the Supreme Court indicated that ensuring access to justice is the greatest challenge to the rule of law in Canada today. The Court said that most Canadians cannot afford to sue when they are wronged or defend themselves when they are sued, and cannot afford to go to trial.
The Court called for a culture shift in order to create an environment to promote timely and affordable access to the civil justice system. Summary judgment motions are one opportunity to accomplish this imperative.
Hubert v. Ladha
Interestingly, in Hubert v. Ladha et al, 2019 ONSC 5542, Justice Dow stated that most motor vehicle personal injury disputes do not appear to be the subject of the access to justice problem identified by the Supreme Court in Hryniak.
On the defence side, Justice Dow noted that automobile insurance in Ontario is mandatory and insurers must provide indemnity for all legal costs that a court assesses against the policy holder.
On the plaintiffs’ side, Justice Dow observed that many lawyers work on contingency, and clients do not have to pay until and unless money is recovered. In addition, legal expense insurance is becoming increasingly common. This insulates plaintiffs from an award of legal costs against them.
Based on the decision in Hubert, parties who pursue summary judgment motions in motor vehicle accident claims, and other litigants with deep pockets or who have insurance, may have some difficulty successfully arguing that the principles outlined in Hryniak are applicable.
However, the fact that a party may be able to afford expensive litigation should not be a reason to deny that party an efficient means of dispute resolution, including the summary judgment process.
As stated in Hryniak, prompt judicial resolution of legal disputes allows people to get on with their lives.
Moreover, in Hryniak, the Court stressed the importance of proportionality. The Court indicated that proportionality means taking into account the appropriateness of the procedure, its cost and impact on the litigation, and its timeliness, given the nature and complexity of the litigation.
Proportionality should be an underlying consideration in all court proceedings, not just those involving parties of limited means.
Efficiency and conserving scarce judicial resources should be key goals for all players, including those with insurance and those insulated from cost awards. This increases access to justice because parties who need a trial will face less delay in getting their cases to court.
If a matter can properly be disposed of summarily without a full trial, it should be, regardless of the financial or insurance status of the parties. For all litigants, a three hour summary judgment motion is better than a three week trial, if it will likely produce the same result.